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VCAT losing patience with short-stay operator

04 Dec 2019

The Victorian Civil and Administrative Tribunal (VCAT) has almost lost patience with local short-stay apartment operator Shivesh Kuksal.

In a report to the Supreme Court, VCAT deputy president Ian Proctor says Mr Kuksal may be “restrained” from appearing in the future. He left the way open for Mr Kuksal to be represented by others.

In his October 28 report, Mr Proctor outlined his reasons to the Supreme Court (to which Mr Kuksal has appealed) for refusing an October 23 application to “reconstitute” a tribunal and have its presiding member replaced.

In the report, Mr Proctor says Mr Kuksal’s reconstitution application “was a ploy to achieve a refused adjournment and delay matters.”

“He regularly seeks delay as a strategy in proceedings before this tribunal,” Mr Proctor said.

He reported that Mr Kuksal had won an adjournment of an earlier hearing after calling an ambulance for “a severe health condition” as well as refusing “to be in the same room as the applicant’s representative on the grounds that an interim intervention order was in force”.

He described Mr Kuksal’s action to call police for protection against this real estate agent who was in another room taking part in the October 23 hearing “when there was no threat to his safety” as “outrageous”.

“Mr Kuksal’s conduct before me in this hearing was unacceptable, with him being unreasonable, argumentative and misleading,” Mr Proctor wrote.

Mr Proctor pointed the Supreme Court to earlier VCAT decisions where “I and other members of the tribunal have recorded unacceptable conduct by Mr Kuksal.”

As an example, in Wang v Efektiv Pty Ltd, Mr Proctor lists multiple abuses of processes by Mr Kuksal and his many related companies, which he said were “well known” to VCAT.

“The companies lease hundreds of apartments, predominantly in the Docklands area, and sub-lease or license the apartments via AirBnB and other companies to international students, holidaymakers and perhaps others,” Mr Proctor said.

“Many landlords have made applications to VCAT against the companies, and Ms [Lu Lu] Xu and Mr Kuksal as tenants, seeking possession of rented premises due to non-payment of rent.”

“Landlords have also made application seeking compensation for unpaid rent, cleaning expenses and repair expenses. Holiday makers or students who have rented premises from one of the companies or who

were licensees staying in the premises have made applications to VCAT seeking recovery of ‘security bonds’,” Mr Proctor said.

“Once applications were before VCAT for decision, the companies have routinely conducted themselves as litigants at VCAT in a variety of unacceptable ways.”

“The following VCAT decisions serve as examples: In Tam v The State of Our Times Pty Ltd (No. 2) (Residential Tenancies ) [2019] VCAT 1167, Member Powles said at [64]: It is scandalous that [State of Our Times] focuses on pedantic and overly technical submissions on the means by which it was served with documents in this proceeding, while not contesting the landlord’s allegations [where] the arrears had grown to $20,670.”

“In Tam v The State of Our Times Pty Ltd (Residential Tenancies) [2019] VCAT 1037 at [23], when dismissing an application for reconstitution (made seeking to replace Member Powles in the above case), Deputy President Lulham said: I am satisfied that [State of Our Times’s] application for reconstitution of the tribunal in this proceeding was not made for genuine reasons, but was instead made to engineer an unnecessary delay in the disposition of the proceeding. [State of Our Times] succeeded in causing that delay, but its application for reconstitution was vexatious and an abuse of process.”

“In the same decision, deputy president (DP) Lulham described a request by Mr Kuksal for VCAT to provide an interpreter for Ms Xu as misleading. DP Lulham had heard submissions from Ms Xu and regarded her English as fluent. He considered Ms Xu to be ‘play acting’ while Mr Kuksal made the submission.”

“The multiple times Ms Xu has appeared before me in hearings, demonstrate her fluency in English. As far as I am aware, Ms Xu has never herself sought that VCAT provide an interpreter.”

“In Li v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 877 at [17], VCAT concluded Mr Kuksal had during the hearing attempted to intimidate agents for the landlord.”

“The companies’ representatives have frequently arrived late at VCAT hearings claiming ‘traffic’ or making no excuse at all. VCAT records show this as well as representatives arriving one after the other, disrupting the flow of the hearing.”

“On many occasions, the companies have not appeared at VCAT hearings, later seeking a fresh hearing of my application for review … The companies have repeatedly, without apparent justification, refused to pay rent to landlords.”

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